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"Open government" under fire as government suppliers claim trade secrets

Facing painful accusations of drunk driving, Dale Lee Underdahl of Minnesota challenged the accuracy of the Intoxilyzer 5000EN breathalyzer used against him, and demanded to see the source code used in the device.

The claim launched debates and a lawsuit that escalated all the way to the Minnesota Supreme Court. The device’s manufacturer, CMI, Inc. of Kentucky,claimed the source code was proprietary, copyrighted and refused to comply.  To that end, CMI attempted to block the source code’s release by filing a writ of prohibition, which was denied by the Minnesota Supreme Court, who said the writ is “an extraordinary remedy and is only used in extraordinary cases.”

The State of Minnesota specifically commissioned the Intoxilyzer 5000EN model and “all right, title, and interest in all copyrightable material” created “will be the property of the state,” according to the state’s original bid proposal. Furthermore, the proposal also said CMI must provide the necessary information to “attorneys representing individuals charged with crimes in which a test with the proposed instrument is part of the evidence,” which according to CNet, “seems to include source code.”

On July 26, the Minnesota Supreme Court ruled in Underdahl’s favor, assuring the discoverability of the devices source code and affirming his right to its examination. “The problem is, the manufacturer of the thing thinks they can hold it back and not tell anybody how it works. For all we know, it's a random number generator,” said Underdahl’s attorney, Jeffrey Sheridan.

The Minnesota Department of Public Safety has expressed reluctance to forcibly acquire the source code, and according to a department spokesman, is still considering its response. The department thinks a lawsuit is unnecessary as the contract stipulates CMI’s cooperation with court orders.

The “source code defense” has been used in a number of other states with mixed success. Manufacturers, in the interest of guarding their trade secrets, have rigorously fought against court-ordered scrutiny. In one instance, judges in Florida’s Seminole County threw out hundreds of cases involving breath tests because the manufacturer would not disclose their breathalyzer's source code. However, in another instance a group of more than 150 suspects, in Florida’s Sarasota County, were granted access to the machines’ source code, with the judges citing it was “material to their theory of defense in [their] cases.”

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RE: Is he kidding?
By TomZ on 8/15/2007 12:56:43 PM , Rating: 2
If someone is already innocent, but the device is faulty - however remote that possibility may seem - then justice has not been served and innocent people get punished.

Remember, the purpose of the trial is to determine guilt or innocence - that is unknown in the eyes of the court. Although obviously you've already decided he's guilty.

RE: Is he kidding?
By vortmax on 8/15/07, Rating: -1
RE: Is he kidding?
By TomZ on 8/15/2007 1:10:43 PM , Rating: 3
I haven't decided anything, except that IMO the defendent's right to examine the evidence presented against him in a criminal case trumps the claim of CMI that the code is a trade secret, especially since the contract seems to clearly state they don't own any rights to the source code.

RE: Is he kidding?
By vortmax on 8/15/07, Rating: 0
RE: Is he kidding?
By TomCorelis on 8/15/2007 1:49:50 PM , Rating: 4
One thing I didn't include was how the certification process for these devices work: states do not certify every single release of the source code, and manufacturers will often release bug patches or other changes directly to the breathalyzers with little oversight. (Same thing with the voting machines.) It's possible this man was scanned with one running uncertified code.

If the machine's running uncertified code, and the manufacturers' testing processes are anything short of rigorous, I can see a very valid legal defense strategy in challenging the machines themselves.

RE: Is he kidding?
By Gneisenau on 8/15/2007 2:36:18 PM , Rating: 2
As a person who uses test equipment everyday and analyzers, we have to have them sent to a lab at specific intervals and tested to insure they read correctly. We receive a report back, traceable back to NIST that proves that every piece of equipment used to test our gear and test the tester's gear is accurate. I would be shocked if they didn't have to do something similar. Even if it's the use of a certified test gas or something like that.
Anyway it would be easy to have the machine tested to prove or disprove it's accuracy without the source code.
In my opinion, they are only asking for it, not to prove his innocence, but because they know that the case can be thrown out of court if the company refuses to comply. And if so, I think that is an abuse of the system.

RE: Is he kidding?
By rcc on 8/15/2007 2:45:57 PM , Rating: 1
In which case he really needs the firmware from that exact unit.

RE: Is he kidding?
By TomZ on 8/15/2007 1:51:46 PM , Rating: 3
If you know anything about software, you should know that "in use for years and years" does not prove the lack of existence of a bug. Maybe they released a software update the week before that had a bug, for example? Maybe there's a bug in the software that's been in there all the time, that only crops up in certain considitions? Who knows.

I agree with you to a certain extent, that from a practical perspective, there is probably a 1 in 10000 chance of them finding a bug that gets this guy's case thrown out. And also I recognize that the guy's attorney is also trying to get the State to jump through all these extra hoops with the hope of them making a mistake that causes the case to be dismissed. But still, the defendent has a clear right to try to prove his innocence, and he cannot be deprived of that right.

If anything, you should be faulting the State. They should have been able to anticipate these types of legal challenges, and be ready will all the requested information. If they had been better prepared, they could just quickly provide the information, the defense could examine it, and the case could quickly proceed.

RE: Is he kidding?
By vortmax on 8/15/2007 1:59:15 PM , Rating: 2
You'd think they could test the actual device that was used on him to be sure it worked properly. As long as it wasn't 'patched' or something since then.

I have no problem with someone trying to prove their innocence, that's their right. I do have a problem with someone trying anything to side-step the responsibility of their actions while many taxpayer $'s are being wasted in the process.

RE: Is he kidding?
By TomZ on 8/15/2007 2:05:41 PM , Rating: 2
Agreed, but taxpayer dollars were wasted mainly because the State was not in control of the information they had rights to, and which they should have anticipated needing in a case like this, especially considering that this type of defense has been used elsewhere prior.

RE: Is he kidding?
By FastLaneTX on 8/15/2007 9:08:26 PM , Rating: 2
There is no way of knowing whether your tests of the same device will produce the same result, because there could be errors in the device that are only triggered under certain conditions. Just look at the studies of the Diebold et al source code in California; they've got all kinds of problems that don't show up in test mode, or even necessarily in elections, unless one does specific things to take advantage of them. What if there's a certain sequence of buttons on the breathalyzer that cause it to boost the reading 0.05 so the cops can put troublemakers in jail even when they're not drunk?

RE: Is he kidding?
By Houdani on 8/15/2007 1:53:45 PM , Rating: 5
I hate drunk drivers as much as the next guy, but it's a fair argument to question the accuracy of a device which is being used to incriminate you.

It used to be that speed radars would clock a tree at 85mph or a house at 30mph, yet these same devices were standard issue and used for evidence in traffic tickets. It was people questioning the radar's accuracy that prompted the manufacturers to hunker down and make a better product.

So, just because a device is widely used and commonly accepted doesn't exclude it from scrutiny.

On a personal note, I hope that the device stands up to the scrutiny and closes the door on this defense mechanism.

RE: Is he kidding?
By Choppedliver on 8/15/2007 1:28:51 PM , Rating: 2
And what would be the problem with that?

The law says, he is innocent until proven guilty. So yes, as of now, he is innocent, until proven otherwise.

RE: Is he kidding?
By vortmax on 8/15/2007 1:30:31 PM , Rating: 2
Read my post above yours...

RE: Is he kidding?
By kmmatney on 8/15/2007 2:51:15 PM , Rating: 2
I don't know if "innocent until proven guilty" applies to traffic citations. When you get a traffic violation you are pretty much guilty as soon as you receive the ticket. You can fight the charge to exonorate yourself, but you are more trying to prove yourself innocent from an already guilty standpoint.

RE: Is he kidding?
By roastmules on 8/15/2007 4:39:15 PM , Rating: 2
I don't know if "innocent until proven guilty" applies to traffic citations. When you get a traffic violation you are pretty much guilty as soon as you receive the ticket. You can fight the charge to exonorate yourself, but you are more trying to prove yourself innocent from an already guilty standpoint.

Actually, it does apply. But, in most cases, your desire to prove innocence is less than your desire to "make it go away". If you get a $90 ticket for a traffic violation, you can fight it, or you can simply pay $90, and either plead no contest, or plead guilty. It is often cheaper to pay the fine, than take time off work, go to court, and still probably lose.

In a DD, DUI, DWI case, it can cost you as much as $20-$50,000 over the rest of your life. It's worth it to fight tooth and nail, especially if you are close. Or, don't get an attorney, and throw yourself at the mercy of the court. A friend of mine with no criminal record, no bad driving record, etc, got off fairly lightly by asking for mercy of the court, and pleading guilty. (No jail, small fine, short suspension of license, short probation) Now, it's a permanant stain on them, only one stain, but a biggie.

I know of very higly paid people who believe that a handicapped space is their personal spot. They simply pay the ticket. In this case, there's no time, only money. Their hourly wages are too high to keep them from parking there.
DUI is a "hard constraint". A red-light camera ticket or a regular parking ticket is a "soft constraint". Depending on your economic level, other fines are in-between, such as a $250 handicapped parking space fine, or a loading dock zone fine.

RE: Is he kidding?
By iNGEN on 8/15/2007 1:43:49 PM , Rating: 2
No vortmax, TomZ is affording the defendant exactly the regard forced upon all agents of government by free men, presumption of innocence.

I suspect TomZ's regard for the defendant is not based on a belief in the defendant's innocence, but born of love for liberty.

RE: Is he kidding?
By TomZ on 8/15/2007 2:02:36 PM , Rating: 2
Exactly, and also to be clear, I hate drunk drivers as much as the next guy, but we have to be careful to protect our freedoms from government that will almost certainly abuse its power if left unchecked.

RE: Is he kidding?
By omnicronx on 8/15/2007 2:16:59 PM , Rating: 2
I love freedom as much as the next guy, but if this stands its only a starting point of people taking advantage of the system when it comes to any arrest with the main evidence being technology. Whats to stop someone from now saying.
'i was not speeding, the code in the radar gun must be wrong'
It only opens the door to defenses like this, and the courts will have no choice but to start drop cases every time something like this arises, as cases could be drained on for months.

governments should start certifying technologies that are used as main evidence for peoples arrests. There should be a undebatable line of yes or no. Especially with a case like this, when you are usually tested for blood alcohol upon arrest, and again when you are brought to the station.
Either the technology works, or it doesnt, it really is not that hard.

RE: Is he kidding?
By TomZ on 8/15/2007 2:28:06 PM , Rating: 2
No, I disagree. If defenses like this are successful, then it means that the devices are not as accurate as they should be and/or there is not a sufficient system in place to guarantee their accuracy. Therefore, the reaction on the part of the government, police, and prosecutors will be to improve the devices and/or the validation systems. I think you'll agree with me that this is a good outcome, right? The alternative that you suggest, that most DUI prosecutions would fail because of this, seems very, very unlikely.

RE: Is he kidding?
By TomZ on 8/15/2007 2:31:28 PM , Rating: 2
Either the technology works, or it doesnt, it really is not that hard.

Please give me one example of another non-trivial technology product that "either works or doesn't"?

For example, wouldn't you agree that a consumer MP3 player is probably no more complex than a brethalyzer? With no moving parts and all, it should never fail, right? You probably see where I'm going with this...

RE: Is he kidding?
By Gneisenau on 8/15/2007 2:51:28 PM , Rating: 2
True, the analyzer can break, but it can also be sent to a certified lab and tested.

My questions is who on the jury is going to have any idea what the defense is talking about if they start jabbering about source code? How many people here could follow someone's conversation about a C program or Assembly... You would have to think that the odds of everyone here understanding what they were talking about is several orders of Magnitude above that of the general puplic.

RE: Is he kidding?
By TomZ on 8/15/2007 3:02:49 PM , Rating: 2
I think that would be the point in having expert witnesses, e.g., licensed professional engineers with experience in that type of product.

RE: Is he kidding?
By omnicronx on 8/15/2007 3:16:13 PM , Rating: 2
that sounds good in theory, but what makes you think the jury will understand what the expert witnesses / licensed professional engineers are saying? The jury is suppose to take what you are saying into account, but in a real life situation would it actually work out in that way? Its just like the prosecutor saying something pertinent to the case, and then have it objected too and stricken from the record. The jury is not suppose to listen, but it will still linger in the back of their minds. If the jury does not know what the experts are talking about, they will probably use their best judgment to make a decision.

RE: Is he kidding?
By TomZ on 8/15/2007 3:26:07 PM , Rating: 2
I'm not an attorney, but I think it would work something like this. The expert looks at the source code, and the testifies to the jury that yes, there is a flaw which could cause the BAC reading to be off. One purpose of the expert is therefore to interpret the technical situation and give a plain-english conclusion that the jury can understand. Plus of course the expert is under oath and also staking his/her reputation on giving an honest assessment.

RE: Is he kidding?
By Gneisenau on 8/15/2007 3:46:21 PM , Rating: 2
I can agree with that if the proscution doesn't have experts saying it has no bugs.
The problem with experts is when you have 1000 experts say one thing and 5 say another, you only get to bring 1 or 2 each to court. That makes it seem like the experts are split when in fact they are not. Juries should not decide technical matters IMO. They should decide if they guy broke the law or not. Not the accuracy of some device they don't comprehend. The accuracy of the device needs to be handled in another forum.

RE: Is he kidding?
By iNGEN on 8/15/2007 1:38:29 PM , Rating: 2
Be careful TomZ. You may gather much scorn for saying things like that.

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